OpinionIsrael at War

Fast-track licenses to get military supplies to Israel

With congressional support, the Biden administration should implement an emergency process to help save the lives of Israeli soldiers.

Hull Maintenance Technician 2nd Class Carl Harris inspects remaining high explosive material from a disrupted improvised explosive device during a training exercise in Bahrain in May 2005. Credit: U.S. Navy Photo by Photographer's Mate 1st Class Aaron Ansarov.
Hull Maintenance Technician 2nd Class Carl Harris inspects remaining high explosive material from a disrupted improvised explosive device during a training exercise in Bahrain in May 2005. Credit: U.S. Navy Photo by Photographer's Mate 1st Class Aaron Ansarov.
Harold Paul Luks. Credit: Courtesy.
Harold Paul Luks
Harold Paul Luks is an export control and international trade advisor with Luks Cormaney LLP in Washington, D.C. Questions or comments regarding this article can be sent to: hluks@lukscormaney.com.  

Since the heinous attack by Hamas against Israel on Oct. 7, individuals and organizations across the United States have sought to export military supplies for Israeli soldiers. Across the United States and Europe, these supplies include: (i) advanced body armor vests; (ii) clothing to protect against or minimize detection by radar, infrared or other types of sensors; (iii) helmets to provide ballistic protection or which can be adapted for night vision equipment; (iv) certain types of night vision and or infrared cameras; and (v) goggles, visors and other forms of protection against various types of laser, infrared or ultraviolet wavelengths.

Unfortunately, the best intentions to protect Israeli soldiers have run afoul of U.S. export control regulations (and similar regulations in other U.S. allied countries). Exporting these and other types of military equipment requires the prior approval of the U.S. Department of State by the issuance of an export license under the International Traffic in Arms Regulations (ITAR). Other types of equipment that have military end-uses, and perhaps non-military end-uses as well, are subject to export licensing controls administered by the U.S. Department of Commerce.

Obtaining an export license can be cumbersome and time-consuming. Under the ITAR, registration with the State Department requires completion of an online form which, in turn, provides the basis for submitting a detailed online export license application. The State Department’s review of such applications, and a related review by the U.S. Department of Defense, can take up to 60 days. Israeli soldiers do not have 60 days and we need to act now to save lives.

Most military equipment and technology are listed in the United States Munitions List (USML). The USML is Part 121 of the State Department-administered International Traffic in Arms Regulations, or ITAR. (See: www.pmddtc.state.gov/ddtc_public/ddtc_public; click on “Learn About Export Regulations” and go to the tab for “Understand the ITAR.”)

For Israel, with few exceptions, a State Department-issued export license is required for hardware listed on the USML. There are established, easily recognizable standards for most military equipment. This enables an exporter to determine if a particular type of equipment appears on the USML. For example, regarding body armor (i.e., vests), the U.S. National Institute of Justice (NIJ) has established six levels for protection against several types of ballistic rounds. These standards parallel standards adopted by most governments allied with the United States, including Israel. The most robust protection is known as NIJ Level IV. Vests with such inserts can stop .30-caliber steel core armor-piercing rifle ammunition.

The export to Israel of complete NIJ Level 4 vests (i.e., with the inserts), or just the ceramic or composite inserts/plates for vests, requires the exporter to obtain an export license from the State Department. Such vests and their insets are identified in USML Category X for “Personal Protective Equipment.” Under the ITAR, exporting without the required license can result in civil or criminal monetary penalties, as well as incarceration. Other less robust vests also are subject to export licensing requirements; this is regulated by the Commerce Department.

The military equipment donated for export to Israel should be coordinated with the needs of the IMOD. They are the final arbiters of the types of equipment to be distributed to their soldiers. Personal body armor, such as vests, must be certified by the U.S. manufacturer as meeting a specific IMOD-approved ballistic protection standard. There are now reports that the IMOD is now willing to receive, certify and distribute vests and other types of military equipment. Companies, individuals and organizations that seek to support Israel by procuring equipment for the Israel Defense Forces should be aware that equipment for the IDF must satisfy Israeli-specific performance requirements. For example, even when vests are manufactured in the United States and certified by the manufacturer as meeting the requirements for Level IV protection, they may be subject to independent testing by the IMOD in advance of distribution to individual soldiers. As another example, night-vision devices, identified in USML Category XII (Fire Control, Laser, Imaging and Guidance Equipment) should be capable of integration with existing military systems and require minimal training.

In sum, distributing vests or other types of equipment (e.g., night vision, helmets, goggles or clothing to reduce a soldier’s visibility) without a manufacturer’s certification or detailed description—and without the IMOD’s approval—could create a false sense of security in combat and thereby place a soldier in harm’s way with potentially lethal consequences.

Once the U.S.-origin or foreign-made equipment satisfies IMOD requirements, it is to the responsibility of those who wish to support the IDF to order, procure and export the goods to Israel in compliance with U.S. export control regulations. This means determining (i) whether the equipment is ITAR-controlled and requires a State Department-issued export license; or (2) is identified in the Commerce Control List (CCL), a part of the Export Administration Regulations administered by the Department of Commerce. Such jurisdictional determinations are a prerequisite for compliance with U.S. export controls.

It is inefficient for disparate individuals, newly created corporate entities or existing organizations to register with the State Department and then apply for individual export licenses. The annual cost for registering with the State Department is $2,250. Each individual application would need to include the specific type of equipment by part or model number, quantities and descriptive materials, supported by a purchase order, letter of intent or other documentation to confirm that the IMOD is the authorized end-user. Individual shipments of related equipment by multiple exporters require the IMOD to consolidate, evaluate, possibly test, and then distribute the equipment. Efficiency in receiving and distributing military equipment can save lives.

There are published, detailed procedures for obtaining the required export license. This requires the exporter to register with the State Department. Once the online registration application has been accepted and approved, the new registrant is eligible to apply for an export license. Such applications are processed by the State Department and then reviewed by the DoD; specifically, the Defense Technology Security Administration (“DTSA”). To date, the State Department has not published any guidelines for expediting its review of license applications for Israel.

In contrast, the Commerce Department’s Bureau of Industry and Security has published the following notice on its website (bis.doc.gov) under “submit your Israel licensing requests here.” There is no further guidance, including whether the application must be submitted through the electronic export license application, known as SNAP, and the time limit for issuing ”emergency” export licenses.

Under the ITAR, there is an alternative and legally permissible process by which the U.S. government could expedite the export of equipment intended for end-use by the Israel Ministry of Defense (IMOD). ITAR Part 126 (General Policies and Provisions) provides the authority for the State Department to waive established export licensing procedures and requirements; thereby implementing a fast-track license approval process if in the interest of U.S. national security, foreign policy or otherwise in the interest of the U.S. Government. Reliance on these broad legal authorities is highly discretionary.

The most significant step is for the State Department to translate U.S. policy in support of Israel’s right to self-defense by implementing a fast-track export license approval process through the Department’s Directorate of Defense Trade Controls (DDTC), the State agency that administers the ITAR regulations. This would no doubt require a determination by the U.S. Secretary of State; almost certainly based on consultations with the president, as well as his national security and foreign-policy advisors. Based on the recent announcement by BIS, the Commerce Department already appears to be considering such an approach.

Given the scope of current military efforts by Israel, it would be appropriate for the Government of Israel (GOI) to request that the president support—and the State Department implement—a fast-track licensing regime be established to ensure the rapid transfer of ITAR-controlled equipment to the IMOD. In turn, the GOI would ensure that equipment authorized under such procedures would (i) be utilized only by the IMOD or a designated Israeli government entity; and (ii) would remain the property of the GOI/IDF (i.e., no ITAR exports to individuals and no re-exports to another country without prior USG approval).

Finally, to ensure the implementation of on ITAR-based fast-track license approval process, without delay, a bipartisan group of senators and representatives drawn from the congressional leadership, the House Foreign Affairs and the Senate Foreign Relations Committees, and the Armed Services Committees, should submit a request to the president and secretary of state recommending the implementation of a fast-track export licensing process for Israel.

To limit the number of such applications, and to consolidate the goods for delivery to Israel, U.S. volunteer organizations and individuals procuring equipment should agree to designate one or two exporters eligible to submit export license applications to the Departments of State and Commerce. The specific types of equipment, as requested by the GOI/IMOD, could be procured in an organized manner, classified for export purposes (i.e., ITAR v. EAR), inventoried, exported by an experienced freight forwarder, and imported into Israel by a licensed Israeli customs broker.

U.S. President Joe Biden and U.S. Secretary of State Antony Blinken both visited Israel this week, so perhaps such a request was made while they were there. Of course, congressional follow-up remains.

This effort has one goal: to save the lives of soldiers protecting Israel.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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